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TMI Blog2023 (7) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... carriers, including family members. A strict vigil was therefore maintained over the passengers. Based on the intelligence input, petitioners, who were travelling from Dubai to Calicut by Spicejet Flight SG 54, were intercepted at the exit gate of the baggage hall at Calicut Airport on 16-05-2023. As mentioned earlier, they are husband and wife. Upon a thorough personal search, the Customs Officers seized 950 gms of gold in a compound form concealed in four capsules in the rectum of the first petitioner and a further 1198 gms of gold concealed in a compound form inside the panties worn by the second petitioner. The total quantity of gold seized from the petitioners was 1977.18 gms having a value of Rs. 1,20,90,456/- in the domestic market. After recording petitioners' statement under section 108 of the Act, a crime was registered and Sri. Amjad Mihran was arrayed as the first accused, while petitioners were arrayed as accused 2 and 3. Petitioners were thereafter arrested. The bail applications filed before the Magistrate Court as well as the Sessions Court were rejected, and hence recourse to this Court, seeking regular bail. 3. Sri. S. Sreekumar, the learned Senior Counsel du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 135 of the Customs Act, 1962, to the extent it is relevant, reads as below:- "135. Evasion of duty or prohibitions (1) Without prejudice to any action that may be taken under this Act, if any person- (a) is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) xxx (c) xxx (d) xxx (e) xxx he shall be punishable,- (i) in the case of an offence relating to,- (A) any goods the market price of which exceeds one crore of rupees; or (B) xxx (C) xxx (D) xxx (E).xxx with imprisonment for a term which may extend to seven years and with fine: PROVIDED that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years, or with fine, or with both. 7. The question as to whether the offences under the Act are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fe and were travelling with their children on the same flight. Innovative methods are adopted by those indulging in smuggling to overcome the rigours of law. The contention of the respondent that smugglers are now utilizing family members as carriers to transfer gold of high value, by splitting the gold into quantities which would fall less than the value of Rupees One Crore, cannot be brushed aside as insignificant. 11. Until 2013, all offences under the Act were bailable. This was evident from the erstwhile sub-clause (6) of section 104 of the Act which stated that "Notwithstanding anything in the Code of Criminal Procedure, 1973, all offences under the Act shall be bailable". However, by the Finance Act, 2013 (Act 17 of 2013) dated 10.05.2013, the aforesaid sub-clause (6) was substituted by the present clause (extracted earlier). Thus after the amendment, offences other than those excepted under Sec. 104(6) of the Act alone are bailable. Section 104(6)(c) provides that if goods have been imported without declaration in accordance with the provisions of the Act, and the value of the goods exceeds one crore of rupees, then the offence is non-bailable. 12. Smuggling of gold has a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act, such an interpretation ought to be avoided is also to be borne in mind in this context. Thus the definition of the word person as appearing in section 135 of the Act must be given a contextual interpretation. 16. The decision relied upon by the learned Senior Counsel for the petitioners in Mohd. Tufial v. Union of India and Another (2023 SCC Online All. 98) is, according to me, distinguishable. In the said decision, the persons from whom the contraband was recovered were not family members but persons travelling together on a train. The concept of common intention of the passengers was not borne in mind by the court while rendering the said judgment. On the other hand, in the decision in Amal Mubarak Salim Al Reiyami (Smt.) and Others v. Union of India (2015 SCC Online Raj. 486) it was held that a pragmatic and realistic view has to be taken in the light of the amendment made to the Act making the offences above the value of Rupees One Crore to be non-bailable. The Court observed that the word 'any person' does not mean only one person but even more than one person, if they had jointly and knowingly involved themselves in fraudulent evasion or attempted evasio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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